Handbook Alert - NLRB Addresses Dress Code Policy Regarding Union Buttons/Insignia
By Kamer Zucker Abbott
January 13, 2020
The National Labor Relations Board (Board) recently addressed Walmart’s dress code policy that prohibits employees from wearing any buttons or insignia unless they are “small and non-distracting” (i.e., no larger than the employee name badge). The Board found Walmart’s rule lawful for employees working with the public but determined that the rule violated the National Labor Relations Act when applied to employee-only locations.
The Board first explained that employees have long had the right to wear union buttons and other insignia at work.Content-neutral rules, like Walmart’s, that prohibit all buttons or insignia without regard to message, will be analyzed as Category 2 rules under Boeing. Thus, in every case, these rules will be subject to scrutiny by the Board.
The Board then found that Walmart’s rule was lawful as it applied to the “selling floor” of its stores. While the rule “would potentially interfere with employees’ Section 7 right to display some union insignia,” the “adverse effect is relatively minor” because “[e]mployees are free to wear any union message they want, subject to the policies’ size and appearance limitations, and they have done so without interference.” The Board further found that Walmart had a compelling and legitimate interest in “providing its customers with a satisfying shopping experience,” and “ensuring that its security personnel can readily identify who is and who is not an employee to protect against vandalism or theft.”
However, the Board determined that the employer’s rationale for the rule was far less compelling when applied to employee-only areas of the stores and that the rule was, therefore, overbroad and unlawful for such areas. The Board explained that “in areas away from the selling floor, security personnel can directly confront anyone they do not recognize, regardless of whether the individual is wearing a Walmart uniform.” The Board rejected Walmart’s argument that logos or graphics distract coworkers and lessen productivity, explaining the “whole point of wearing a large or distracting union . . . button in an ‘employees only’ area is to catch the attention of coworkers.” The Board further rejected the employer’s argument regarding employees needing to move between both areas of a store and determined that employees can “simply remove a button prior to stepping onto the selling floor.”
While this is a positive decision for employers, any employer wishing to restrict buttons/insignia needs to ensure that their policy is narrowly drafted and supported by legitimate justifications. Employers should distinguish between public-contact areas and employee-only areas and should always ensure that their rule is both drafted and applied in a content-neutral manner. If you would like assistance with a button/insignia policy, please contact a KZA attorney.